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Administration of Justice 
in Illinois 

An Address delivered by 

HIRAM T. GILBERT 

before the Illinois State Bar 
Association, at Peoria, Illinois, 

June 24, 1909 0 a 0 a 





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- Mr. President and Members of the Illinois State Bar Association: 

The manner in which justice is administered in the courts of this state 
may be illustrated, to some extent, by adjudged cases. 


People ex rel. Bibb v. Mayor, Etc., of Alton, 233 Ill. 542. 

In 1898 Scott Bibb, a colored man, filed in the Supreme Court his pe¬ 
tition for a mandamus to compel the city authorities of the City of Alton 
to admit his two children, Minnie Bibb, then seven years old, and Ambrose 
Bibb, then eight years old, to a public school in that city. Issues of fact 
having been made by the pleadings the supreme court, following its pre¬ 
vious practice in such cases, which practice had prevailed for about eighty 
years, sent the issues to the circuit court of Madison County for trial by 
jury. A trial being there had it resulted in a verdict against the petitioner, 
which verdict, being certified to the supreme court, was set aside. {People 
ex rel. v. Mayor, etc., of Alton, 179 Ill. 615.) Six subsequent trials by jury 
were had in the Circuit Court in two of which the juries disagreed and in 
the other four of which verdicts were rendered in favor of the respondents. 
{People ex rel v. Mayor, Etc., of Alton, 193 Ill. 309; People ex rel v. Mayor, 
Etc., of Alton, 209 Ill. 461; People ex rel. v. Mayor, Etc., of Alton, 221 Ill. 
275; People ex rel v. Mayor, Etc., of Alton, 233 Ill. 542.) Each verdict in 
favor of the respondents prior to the last one was set aside by the Supreme 
Court and an order made sending the-issues back to the Circuit Court for 
another trial. When the..last.-.ver,djLct came before the court in 1908, ten 
years had elapsed since the commencement of the suit and Scott Bibb’s 
daughter Minnie had reached the age of seventeen years and his son Am¬ 
brose had reached the age of eighteen years. The court then, for the first 
time, discovered that there was no constitutional right of trial by jury in 
a mandamus case originally brought in the supreme court, and, finding that 
the last verdict rendered by the jury was plainly and palpably against 
the evidence in the case, the court set it aside, found that all the material 
facts alleged in the petition were true and that the relator was entitled 
to the writ of mandamus prayed for, and ordered the issuance of the writ, 
in and by which the city authorities of Alton were commanded to admit the 
then grown-up children of the relator to the public school in question. Two 
of the judges of the supreme court dissented from the judgment on the 
ground that the parties had a constitutional right of trial by jury in a man¬ 
damus case brought originally in the supreme court. 

This case needs no comment. Res ipsa loquitur. It may be remarked, 
however, in passing, that after it had been commenced, but before it was 
finally decided, the court held that it was vested with a sound legal discre¬ 
tion as to whether it would exercise its original jurisdiction in mandamus 
cases, and determined it would only exercise it for the protection of the 
rights, interests and franchises of the state and the rights and interests of 
the public, to enforce performance of high official duties affecting the public 
at large, and, in emergencies, in cases affecting local public interests or pri¬ 
vate rights, when there was no other adequate remedy and when the exer¬ 
cise of such jurisdiction was necessary to prevent a failure of justice; and 
this conclusion of the court was based mainly upon the proposition that 
when, in a mandamus case, an issue of fact was made up, it became necessary 
to certify the case to an inferior court for trial by jury, thus occasioning 
unnecessary delay and inconvenience to the supreme court and to the parties 
interested. People ex rel. Kocourek v. City of Chicago et al., 193 Ill. 507; 
People ex rel. Taylor v. Board of Education, 197 Ill. 43. 


4 


C., B. & Q. R. R. Co. V. Perkins, 125 Ill. 127. 

About the month of September, 1881, Bernard Dougherty, a tenant 
farmer, came to his death through a collision with a passenger train of 
the Chicago, Burlington and Quincy Railroad Company. He left him sur¬ 
viving a widow and two children, aged nine and eleven years, respectively. 
His estate consisted of personal property not exceeding in value $1,500. His 
widow, as administratrix, brought an action against the railroad company 
and, in 1882, recovered in the circuit court a judgment for the sum of $4,000. 
This judgment the appellate court of the second district reversed for errors 
in the instructions given to the jury and remanded the action to the circuit 
court for a new trial. (0., B. & Q. R. R. Go. v. Dougherty, 12 Ill. App. 181.) 
In 1883, the case was again tried in the circuit court where the plaintiff 
recovered a judgment for $5,000. This judgment the appellate court affirmed 
in 1884. (0., B. & Q. R. R. Co. v. Dougherty, 14 Ill. App.. 196.) The railroad 

companj^ thereupon prosecuted an appeal to the supreme court, with the result 
that the court, two judges dissenting, reversed the judgment on the 
alleged ground that an instruction given for the plaintiff was erroneous and 
remanded the action to the circuit court for a new trial. (C., B. & Q. R. R. 
Go. V. Dougherty, 110 Ill. 521.) A third trial of the case took place in the 
circuit court in 1886, and resulted in another judgment in favor of the plain¬ 
tiff for $5,000. This judgment was affirmed by the appellate court and sub¬ 
sequently, on a further appeal, was, on May 9, 1888, affirmed by the supreme 
court. ((7., B. & Q. R. R. Go. v. Perkins, 125 Ill. 127.) The judgment was 
finally paid in September, 1888, after the denial of an application for a 
rehearing, and nearly seven years after the commencement of the suit. From 
the amount thereof there was deducted over $1,000 which the railroad com¬ 
pany recovered as costs in the appellate and supreme courts on account of 
the reversals of the first two judgments, leaving to the widow and children, 
after the payment of costs, printing bills, attorneys’ fees, and other expenses, 
a little less than $3,000. 


Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573. 

In June, 1887, a Polish laborer named Prank Sobkowiak was severely 
injured while working in a clay pit of the Chicago Anderson Pressed Brick 
Company. He commenced an action against the company in the circuit court 
shortly after his injury and a trial thereof, early in 1889, resulted in a judg¬ 
ment in his favor for $6,000. (G. A. P. B. Go. v. Sobkowiak, 34 Ill. App. 312.) 

This judgment the appellate court, in December, 1889, reversed because, in its 
opinion, the damages were excessive and because of alleged errors in the 
instructions to the jury. The case was again tried in the circuit court early 
in 1890, the trial resulting in another judgment for the plaintiff for $6,000. 
(0. A. P. B. Co. V. Sobkowiak, 45 Ill. App. 53.) This judgment the appellate 
court, in December, 1890, reversed on account of errors in the instructions to 
the jury and of the award of excessive damages to the plaintiff. The 
action was tried a third time in the circuit court and the result was that the 
plaintiff obtained a verdict for $8,500, from which $2,500 was remitted, and 
judgment was entered in his favor for $6,000. This judgment the appellate 
court in December, 1892, affirmed. (0. A. P. B. Co. v. Sobkowiak, 45 Ill. App. 
317.) From this judgment of affirmance the defendant prosecuted an appeal 
to the supreme court, where, nearly seven years after the commencement of 
the suit, on January 16, 1894, the judgment was affirmed. (0. A. P. B. Go. v. 
Sobkowiak, 148 Ill. 573.) After the appeal was taken and perfected from 
the appellate court to the supreme court, and while the case was being held 
“under advisement” by the latter court, the defendant company, as well as 
the surety on its appeal bond, became insolvent and Sobkowiak never realized 
a dollar on his judgment. 


5 


The last two cases are referred to, not for the purpose of criticising the 
decisions of the appellate and supreme courts upon the questions of law and 
fact involved, but merely as illustrations of a class of cases, very large in 
number, in which the litigants on one side are poor and weak and on the 
other are rich and powerful, and in which the poor and weak have imposed 
upon them unnecessary and burdensome expense and unjustifiable delay, 
amounting, in many cases, to denials of justice. In the one case we see the 
poor widow and minor children struggling nearly seven years with a power¬ 
ful corporation and in the end submitting to the consumption of nearly half 
their just claim in attorney’s fees and court costs, and in the other we see 
a poor cripple struggling a like period only to find his judgment rendered 
valueless by the insolvency of his adversary and the surety on the bond, 
which insolvency occurred while his case was being held under advisement 
by the supreme court. 

McAndrews V. Chicago, Lake Shore and Eastern Railway Company, 

222 Ill. 232. 

In July, 1901, Michael McAndrews was severely injured by reason of 
certain cars being thrown by a locomotive engine under the control of the 
servants of the Chicago, Lake Shore and Eastern Railway Company against a 
car which he was unloading. For the purpose of bringing and prosecuting an 
action against the railway company he employed an able lawyer, who, in 
February, 1902, filed a declaration containing one count. In November, 1903, 
more than two years subsequent to the date of his injury, it having been 
discovered that the declaration was defective, and that it did not state a 
cause of action, it was amended by the filing of two additional counts. To 
these counts the defendant filed pleas of the statute of limitations and, a 
demurrer having been interposed to these pleas, the court sustained it and a 
trial of the case was had upon the merits, with the result that the plaintiff 
recovered a judgment for $12,000. Upon appeal to the appellate court of the 
first district this judgment was reversed on the ground that the statute of 
limitations presented a good defense to the additional counts to the declara¬ 
tion and a judgment was rendered in that court in favor of the defendant. 
Upon a writ of error from the supreme court this judgment was affirmed. The 
result of the decision was that the plaintiff, a poor laboring man, crippled for 
life, and legally and justly entitled to $12,000 as compensation for his injuries, 
was not only defeated of his right to recover, but had a judgment for costs 
entered against him and in favor of the corporation to blame for his injury. 
This occurred through no fault of his own, but merely because of a mistake 
of his lawyer, a mistake the correction of which would have worked no injury 
or injustice to the defendant. 

Walters v. City of Ottawa, 240 Ill. 259. 

In August, 1906, Lillian Walters was injured by reason of a defective 
sidewalk over which she was passing in the City of Ottawa. In the follow¬ 
ing month she filed with the city attorney and the city clerk the notice in 
writing which the law required her to file, giving her name and residence, 
the time and place of the accident, and the name and address of her attending 
physician. She employed competent and able lawyers, who brought suit in the 
circuit court in the same month and filed a declaration consisting of three 
counts. Neither of these counts contained any reference to the notice. The 
city pleaded the general issue to the declaration, but, on November 20, 1907, 
more than a year after the plaintiff’s injury and the commencement of the 
suit, withdrew its plea and filed a demurrer to the declaration, which was 
sustained. The plaintiff’s attorneys thereupon amended the declaration by 
adding to each count averments showing the giving of the notice and setting 





6 


out copies thereof. The city again pleaded the general issue and also the 
one-year statute of limitations. The court sustained the demurrer to the 
plea of the statute of limitations and thereupon the case was tried with the 
result that the plaintiff obtained a verdict and judgment for $1,000, which, 
upon appeal, the appellate court affirmed. Upon further appeal to the supreme 
court the judgments of the circuit court and appellate court were reversed 
and it was held that the statute of limitations barred the plaintiff from 
recovering. So this woman, who had a good cause of action for which she 
was entitled to recover $1,000, who notified the city promptly of her injury as 
the law required, who employed competent and able lawyers and commenced 
her suit within thirty days after her injury, was finally denied justice, not 
for any fault of her own, but because her lawyers, able and competent as they 
were, could not foresee that the supreme court of the state would decide that 
it was necessary to set forth in the plaintiff’s declaration the giving of the 
notice referred to. 

Lake Eeie and Western Railroad Company v. KIlinkrath, 227 Ill. 439. 

In December, 1905, Ruth Klinkrath, then twelve years and eight months 
old, was injured while playing with other children upon a railroad turn¬ 
table. To recover damages for her injury, she brought an action by her next 
friend in the circuit court against the railroad company. The trial resulted 
in a judgment in favor of the plaintiff for $2,000, which judgment the appel¬ 
late court of the third district affirmed. Upon a further appeal to the 
supreme court it was urged by the defendant that the trial court erred in 
giving the following instruction to the jury on behalf of the plaintiff; 

“You are instructed that if you believe, from the evidence, that the plain¬ 
tiff did exercise such care and caution as children of her age, capacity and 
intelligence are capable of exercising under the same circumstances, then the 
plaintiff cannot be charged with the want of reasonable care for her own 
safety.” 

It was objected that this instruction was erroneous because it did not 
require of the plaintiff the exercise of such care and caution “as children of 
her age, capacity, intelligence and experience are capable of exercising under 
the same circumstances,” and it was insisted that the omission of the word 
“experience” required the reversal of the judgments of the circuit and appel¬ 
late courts. Five judges, the two other dissenting, so held and the judgments 
of the circuit and appellate courts were reversed accordingly. 

The plaintiff in this case, being a mere child, was incapable of protecting 
her own -rights in or out of court. If the judge of the circuit court and the 
judges of the appellate court were incapable of detecting the legal difference 
between the care which could be exercised by a child of the plaintiff’s “age, 
capacity and intelligence,” and that which could be exercised by a child of her 
“age, capacity, intelligence and experience," it was not her fault Yet this mis¬ 
take, if it was a mistake, of these four judges (which mistake, it must not be 
forgotten, two judges of the supreme court also labored under) was the means 
of inflicting upon this crippled child the costs incurred by the railroad com¬ 
pany in the appeals to the appellate and supreme courts, and the further 
costs and expenses she would be compelled to incur in another trial by jury, 
to be followed, in case of her success, by further appeals to the appellate 
and supreme courts. Would it not be well to provide by statute, or, if neces¬ 
sary, by constitutional amendrnent, that the costs of mistakes made by judges 
as to the law shall be paid either by the judges themselves or out of the 
state treasury and not be imposed upon cripples or widows or children who 
bring suits in our courts? Might it not also be well to amend the consti¬ 
tution so as to provide that circuit judges, in addition to being twenty-five 
years of age, residents of the state for five years next preceding their election 
and residents of the circuits in which they are elected, shall, like petit jurors. 


7 


be persons “of sound judgment, well informed, and who understand the 
English language”? 

How bright and intelligent must have been the twelve jurors in this case 
if they perceived this exceedingly fine point which, though it was seen by five 
judges of the supreme court, was not apparent to the other two judges or 
that court, the three judges of the appellate court, or to the judge of the cir¬ 
cuit court who presided at the trial! Is it not a travesty upon justice for 
five judges, in a simple case like this, to overrule six other judges presump¬ 
tively of equal intelligence with themselves, and reverse a judgment for the 
omission from an instruction of a word the insertion of which every one 
must be satisfied, to a moral certainty, could not have affected the verdict of 
the jury? 


McCarthy v. Spring Valley Coal Co., 232 Ill. 473. 

In August, 1906, Patrick McCarthy, who was employed by the Spring 
Valley Coal Company as a driver, was injured while working in its mine at 
night by the falling of a mass of rock and earth from the roof of the mine. 
The facts are stated by the appellate court (Spring Valley Goal Go. v. Patrick 
McGarthy, 136 Ill. jtvpp. 473) as follows; 

“Appellant (i. e., the Coal Company) operated a soft coal mine at Seaton- 
ville, Bureau County, by the ‘long wall’ system. There was in the mine an 
entry known as the second right off the main northeast off the main east. 
Appellee (i. e., McCarthy) was a driver in the employ of appellant in its mine 
and worked nights. About three o’clock in the afternoon of August 14, 1906, 
he entered the mine and was informed by the night boss that he would have 
men at the face of the coal in the entry above described and a gob room. 
It then became appellee’s duty to go to the face of the coal at the head of 
that entry and haul out to the gob room such cars loaded with rock and 
earth as the repair gang might have ready for him. He made three trips 
before supper. After supper, about eight o’clock in the evening, he was 
going by this place to reach the face of the coal, when a mass of rock and 
earth fell upon him from the roof of the entry, the amount so falling being 
variously estimated by the witnesses at from eighteen hundred pounds to four 
tons. Appellee’s right arm was crushed between the rock and the rail of 
the track and he was injured about the hips and back and across the 
kidneys. The next day it became necessary to amputate his right arm about 
half way between the wrist and the elbow.” 

He brought suit against the Coal Company in the circuit court of Bureau 
County to recover damages for these injuries. His counsel in his opening state¬ 
ment to the jury began by saying: “In this case Patrick McCarthy, thirty-three 
years of age, with a wife and five children—” when he was interrupted by 
an objection on the part of the counsel for the Coal Company, which objection 
the court sustained. No suggestion was made to the court to stop the trial 
and discharge the jury on the ground that the minds of the jurors had been 
so poisoned by the statement thus made that they had become incompetent 
to properly try the case, but the trial was allowed to proceed without fur¬ 
ther objection on the part of the defendant, the jurors being instructed to 
disregard the statement in question. The jury rendered a verdict in favor 
of the plaintiff for $10,000, upon which the trial court rendered judgment. 
Upon appeal to the appellate court the judgment was’ affirmed to the extent 
of $8,000, after a remittitur of $2,000, which the appellate court required 
the plaintiff to make because of the reference to his wife and five children 
thus made by his counsel. Upon a further appeal to the supreme court 
the latter court reversed the judgment and remanded the case to the cir¬ 
cuit court for a new trial solely because of this statement of the plaintiff’s 
counsel and in doing so said: 

“The statement to the jury that the appellee had a wife and five children 
was manifestly improper. Its only object could have been to enhance the 
damages by getting before the jury, in this improper and unprofessional 


8 


manner, facts calculated to arouse their sympathy, which counsel knew 
could not in any legitimate way be brought to their attention. To admit 
evidence of such facts is error. {Jones & Adams Co. v. George, 227 Ill. 64.) 
The fact once lodged in the minds of the jury could not be erased by an 
instruction and appellee by this statement secured the benefit of the fact 
to the same extent as if he had introduced evidence to prove it.” 

Upon a retrial of the case in the circuit court the plaintiff obtained a 
verdict in his favor for $11,500 and, judgment being entered on the verdict, 
the Coal Company prosecuted another appeal to the appellate court of the 
second district. That court, upon consideration of the record, found it wholly 
free from error, either as to the law or as to the facts, but nevertheless the 
court, one judge dissenting, as a condition upon which the judgment would 
be affirmed, compelled the plaintiff to enter a remittitur of $3,500 on the 
ground, as stated by the majority of tne court, that otherwise the plaintiff 
would have profited hy the misconduct of his counsel upon the first trial. 

With respect to this decision it is to be observed that, if Patrick Mc¬ 
Carthy had been killed instead of being crippled and his legal representative 
had brought an action for the benefit of his widow and next of kin under 
the statute, it would have been not only proper, but necessary, for the plaintiff 
to prove upon the trial that he left a widow and five children. Again, 
assuming the statement made by his counsel to have been improper, Mc¬ 
Carthy was not personally subject to censure because of it. A fine imposed 
upon his counsel in the presence of the jury would have seemed more appro¬ 
priate than the action of the appellate court in compelling McCarthy to remit 
$2,000 from his judgment and subsequently, when the record of the second 
trial was absolutely free from error and the evidence did not justify a 
finding that the damages were excessive, again mulcting him in the sum of 
$3,500, and much more in accord with justice than the action of the supreme 
court in wholly annulling the first judgment. Furthermore, to assume that 
jurors have not honesty enough or intelligence enough to obey the direc¬ 
tion of the court to disregard a fact conveyed to them by an improper 
remark, or even by improper testimony, is an unjust and unwarranted refiec- 
tion upon those of our citizens who, without their own solicitation and 
against their objections, are compelled to perform jury service. 

In this connection it is proper to note that the mining and handling of 
our coal employs about half a million men and boys and that they have 
dependent upon them for support about two million women and children. 
The work is dangerous and unhealthful. It is said that our coal production, 
from first to last, has cost us more in loss of life than the Civil War. Do 
we do right by these men, women and children? Ought not all workmen who, 
without their serious fault, suffer bodily injury, whether in the work of the 
coal mine or in that of any other hazardous but necessary calling, or, if their 
injuries result in death, then ought not their widows and children, to be 
protected by the state, either by being justly compensated out of the public 
treasury, or by being aided, by just laws in securing in some other manner just 
compensation for their injuries? Not only humanity, but justice, demands 
that this should be so. But what is the lot of the injured workman, or his 
widow and children, in Illinois? To intelligent members of the legal’profes¬ 
sion it is a sufficient answer to this question to remind them of the casualty 
company, the claim agent, the employment of a lawyer for a large contingent 
fee, the repeated trials, the hired experts, the jury bribing, the perjury and 
subornation of perjury, the quibbling and the pettifogging at the bar and upon 
the bench, the appeals, the reversals, and the long delays resulting in the 
end, perhaps, in the denial of compensation for the injury. Is not this con¬ 
dition of things a disgrace to our courts, to the members of our profession 
and to the people of the state? 

The cases thus referred to illustrate some, but not all, of the injustice 
suffered by poor persons who bring suits in our courts. Further illustra¬ 
tions of the wrongs they are compelled to submit to in civil cases are to be 


9 


found in the statutory provisons regulating appellate procedure in actions 
to recover damages for personal injuries. These actions are for the most 
part brought by poor persons, or persons in moderate circumstances, for they 
are the ones who are the most frequently subjected to the danger of loss of 
life or bodily injury. A large proportion of them are men w'ho labor in 
manufacturing plants, upon railroads, in coal mines and other dangerous 
places. As a rule they own no promissory notes, bonds, stocks, franchises 
or other similar subjects of litigation. If they come into court as parties to 
civil actions, they come, in most cases, as plaintiffs suing for injuries to their 
persons. Their suits are usually tried by jury and, if they obtain judgments 
in the courts of original jurisdiction, appeals are almost always prosecuted 
by the defendants, who, as a rule, are corporations, firms or individuals finan¬ 
cially able to bear the expense of protracted litigation. Now, what is the pro¬ 
cedure in a case of this character? 

Upon the trial of the case in the court of original jurisdiction we usually 
find the defendant represented by counsel superior in skill and ability to the 
counsel representing the plaintiff. We find the counsel for the defense availing 
himself of the services of a shorthand reporter, as well as other advantages not 
enjoyed by the plaintiff’s counsel, excepting at an expense that is burdensome 
and oppressive to his client. We find the counsel for the defendant objecting 
constantly and taking exceptions, whenever practicable, to the rulings of 
the court, however unimportant they may be, and we find him cunningly 
endeavoring to entrap the judge into committing error, both by presenting 
for his rulings numerous written instructions and by remaining silent as 
to errors in those given by the court in behalf of the plaintiff, in the hope, 
well justified by the history of such cases,. that if the plaintiff obtains a 
verdict these errors may vitiate it. If the result of the trial is favorable to 
the defendant that usually ends it. The plaintiff’s poverty renders an ap¬ 
peal to the appellate court impracticable. As a rule the plaintiff must ac¬ 
cept the measure of justice meted out to him by the court of original jur¬ 
isdiction. On the other hand, if judgment is entered in favor of the plain¬ 
tiff, an appeal by the defendant follows as a matter of course. 

An appeal in every such case must be taken in the first instance to the 
appellate court. In that court all questions, whether of law or fact, are 
open for review. If the appellate court affirms the judgment in the plain¬ 
tiff’s favor and the amount of the judgment is in excess of $1,000, the de¬ 
fendant is authorized to prosecute a further appeal to the supreme court 
and there obtain a review of all the questions of law arising in the case. 
If the supreme court differs from the appellate court in respect to any point 
of law arising or supposed to be material in the case, such as the admission 
of improper testimony, the rejection of proper testimony, the giving of an 
improper instruction or the refusal of a proper one, the making of an im¬ 
proper remark by the trial judge or by the counsel for the plaintiff, the 
judgments of the appellate court and of the trial court may be reversed and 
the cause remanded to the trial court for a new trial. This results, no matter 
what may be the final outcome of the case, in casting upon the plaintiff the 
costs of the appeal first, to the appellate court and second, to the supreme 
court, although he may have been wholly blameless for the errors or sup¬ 
posed errors committed by the trial court. 

On the other hand, if the appellate court upon its review of the case 
finds the judgment to be erroneous, it may reverse the judgment and re¬ 
mand the case to the trial court for a new trial and enter judgment for 
costs against the plaintiff, or, it may reverse the judgment and make a find¬ 
ing of ultimate facts different from those found by the jury and entered a final 
judgment against the plaintiff, carrying with it all the costs of the suit. In the 
former case the plaintiff is put to the trouble and expense of a new trial, 
to be followed, in case he is successful, by another appeal and possibly an¬ 
other reversal and another new trial. In the latter case the plaintiff, if 
the judgment which he has obtained in the court of original jurisdiction 


10 


exceeds $1,000, is allowed the privilege of an appeal to the supreme court, 
but this appeal is of necessity wholly unavailing.The finding of facts made by 
the appellate court is final and conclusive and is always so simple and plain 
that nothing can remain for the supreme court to do but to affirm the 
judgment. 

Apparently the law, in this class of cases, is framed upon the theory 
that the appellate court may make a mistake in affirming a judgment ob¬ 
tained by the plaintiff for a personal injury, but it can never make a mis¬ 
take in reversing one. But this is not all. There is another injustice per¬ 
petrated upon plaintiffs by the law regulating' appellate procedure in ac¬ 
tions of this character. 

The law regulating appeals to the supreme court to review the judg¬ 
ments of the appellate court provides that in actions on contracts in which 
the amount in controversy exceeds $1,000, either party can prosecute an 
appeal from the appellate court to the supreme court and thus secure a re¬ 
view of the judgment of the appellate court. Thus, a plaintiff who sues upon 
a promissory note upon which he claims there is $1,001 due him, if de¬ 
feated in the trial court and subsequently in the appellate court, either as 
to the whole or as to a part of his claim, may prosecute a further appeal 
to the supreme court where he may secure a reversal of the judgment, if it 
is erroneous, and thereby be enabled to collect the amount he claims to be 
due. So, too, a defendant against whom there is rendered a judgment for 
more than $1,000 on account of a tort may prosecute an appeal to the ap¬ 
pellate court and, if there defeated, may prosecute a further appeal to the 
supreme court. But, on the other hand, if a coal miner is killed in a coal 
mine, or a railroad switchman suffers the loss of both his legs, and, upon suit 
being brought, judgment in the trial court is rendered against the widow and 
children in the one case, or the crippled switchman in the other, and the 
judgment of the trial court is affirmed by the appellate court, no further 
appeal can be prosecuted to the supreme court. Thus we see that the right 
to collect a promissory note upon which more than $1,000, is due is so im¬ 
portant and so sacred that the claimant if defeated, has the right to appeal 
to the supreme court, and a judgment against a defendant of over $1,000 
for a tort is so important to him that he must have the right to the opinion 
of the supreme court as to its legality, but the loss of human life or of a 
working man’s limbs is so insignificant and unimportant that the considera¬ 
tion of the case by the supreme court is only necessary when the widow 
and children, or the workman, recover a judgment of over $1,000. When 
he or they recover less, or are entirely defeated, no matter how much they 
may claim to be entitled to, such consideration by the supreme court is whol¬ 
ly out of place. 

Is it not marvellous that such rules of law as these can be in force for 
over thirty years without arousing protest and almost without exciting 
criticism? In 1907, the General Assembly did recognize the injustice which 
arose in this class of cases by the exercise by the appellate court of its 
power to set aside the verdict of a jury and enter a final and conclusive 
finding of facts and a judgment thereon, and, to mitigate it, enacted that in 
any such case, the supreme court, upon ‘appeal or writ of error, should 
review the case both as to the law and the facts. But this provision the 
supreme court promptly declared to be invalid on the ground that it violated 
that provision of the .constitution which declares that the General Assembly 
shall not pass any local or special law granting to any corporation, asso¬ 
ciation or individual any special or exclusive privilege, immunity or fran¬ 
chise. Jones V. G. R. I & P. Ry. Go., 231 Ill. 302. Hence while it is per¬ 
fectly constitutional to deny a plaintiff in a personal injury case an appeal 
from the appellate court to the supreme court when his claim exceeds 
$1,000, and is wholly rejected by the trial court, while at the same time 
granting such an appeal to the defendant if a judgment for more than $1,000 
is rendered against him, and while it is proper and not in violation of the 


11 


constitutional right of trial by jury, to allow the substitution, in place of 
the verdict of a jury who have seen and heard the witnesses, the contrary 
finding of three judges who have not seen or heard them and make that 
finding final and unimpeachable, the constitution is trampled under foot, so 
to speak, by a law which allows this finding to be reviewed by the supreme 
court. 

It is apparent that there is great injustice done to poor persons in our 
courts and that there is need of radical reform, both in the laws regulating 
liabilities for personal injuries and in the methods of procedure in cases 
brought in our courts for the purpose of enforcing those liabilities. This 
reform should be accomplished by the active efforts of the members of the 
legal profession first, because humanity and justice demand it and, second, 
because it will be to their financial benefit. In other words, this reform is 
a matter which should appeal first, to the lawyer’s sense of justice and de¬ 
cency, and, second, to his self interest. 

The denial of compensation for a personal injury received as one of 
the ordinary hazards of the carrying on of a business which is necessary 
to the welfare of the people of the state is contrary to natural justice. It 
is to cast upon an innocent servant a loss which should be borne by those 
who receive the benefits of his labor. So, too, it is an injustice to cast upon 
any injured person the entire loss resulting from the injury, when it lias 
been occasioned by the fault of another, although he himself too has been 
partly to blame. It is also unjust and in violation of the fundamental law 
to deny to any person who brings a suit to recover for an injury a speedy 
trial or to so annoy and mistreat him otherwise as to practically deny him 
justice. If, then, the members of the legal profession secure the passage 
of proper legislation with respect to cases of this kind they will do but a 
simple act of justice to those who suffer personal injuries and are compelled 
to seek redress in our courts. But, to the lawyer who is not moved by a 
sense of what is just and decent another argument may be addressed. 

In order to be able to practice law we must have litigation, or at least 
such laws as will permit litigation to be prosecuted successfully. If our 
laws are so framed that workingmen cannot recover for injuries ’-eceived in 
the course of their employment, or other persons are by law denied relief 
for injuries, they will have no occasion to employ lawyers to bring suits 
to recover damages, nor will lawyers be needed for the defense of such 
suits. Hence such rules of law as the fellow servant rule, the assumed risk 
rule, and the rule which makes contributory negligence a complete defense 
to an action for an injury, are a disadvantage to the members of our pro¬ 
fession in that they decrease the business which would otherwise come to 
them. For the same reason methods of procedure in this class of cases 
which discourage poor persons from prosecuting suits, on account of the 
delays and other annoyances to which they are subjected, are against the 
interest of the practicing lawyer. Members of our profession who are em¬ 
ployed in the defense of personal injury cases see no impropriety in aiding 
their employers, for hire and reward in that behalf, to resist and prevent 
the passage by the General Assembly of just laws of the kind referred to. 
Why should not the other members of the profession, who are by far more 
numerous, interest themselves to secure their adoption? Justice demands 
it and the welfare of the profession demands it also. 

It is not alone in civil cases but also in criminal cases that poor persons 
suffer injustice. Thus, a defendant convicted of a criminal offense and 
fined after a trial before a justice of the peace can only obtain relief from 
injustice by means of an appeal to a court of record of original jurisdiction. 
This appeal he cannot take without the execution of a bond, with a good 
and sufficient surety, conditioned not merely for his appearance in the court 
appealed to, but also for the actual payment of the judgment of the justice 
of the peace in case it is affirmed by the court appealed to, or the payment 
of whatever judgment the court appealed to may enter in lieu thereof. Most 


12 


poor persons, unless entirely without friends, can readily secure sureties 
upon a recognizance for their appearance, but they can rarely obtain sureties 
who will execute appeal bonds conditioned for the absolute payment of 
judgments. The result is that a poor person thus convicted before a justice 
of the peace, and who cannot give an appeal bond, must go to the workhouse 
and there satisfy the judgment by imprisonment with labor in the manner 
prescribed by law. This he must do no matter how ignorant, incompetent 
or partial may have been the justice of the peace, or how unjust may have 
been the judgment. On the other hand, a man of property can leadily 
give an appeal bond and thus remove the case to the court appealed to and, 
in a large majority of the cases, by means of such appeal, the delays at¬ 
tendant thereon and the difficulty of procuring witnesses for the prosecu¬ 
tion, may escape punishment altogether. 

Again, poor persons arrested for misdemeanors, thougli they may be 
heads of families, or persons having known places of residence, must cither 
furnish bail or suffer imprisonment pending the trials of the cases brought 
against them. This often occasions burdensome expense by the calling in 
of the professional bailer or a great hardship resulting from imprisonment 
and punishment before conviction. It not infrequently happens that in¬ 
nocent persons who are acquitted after trials are subjected, before their 
cases are tried, to punishments as severe as would be meted out to them 
had they pleaded guilty and been convicted immediately after their airest. 

Furthermore, poor persons who are on trial for misdemeanors or felon¬ 
ies in our courts of original jurisdiction suffer disadvantages which are not 
suffered by persons of means. As in civil cases, so in criminal cases, the 
rich man has his shorthand reporter and all the other conveniences which 
money can purchase and, in case of his conviction, he can bear the expense 
of the prosecution of a writ of error and thus secure the advantage of a 
review of the judgment by the supreme court, or, in the case of a misde¬ 
meanor, by both the appellate court and the supreme court. These advan¬ 
tages the poor man cannot enjoy, excepting at a sacrifice which is burden¬ 
some either to himself or to his relatives and friends. 

Now every one knows that all this is wrong. Every one knows that a 
system of administering justice in criminal cases by which a rich man can 
secure better treatment or a fairer trial than a poor man is not worthy 
of respect and ought not to be tolerated by the people of this s’ate or by 
the people of any other state. It may be said that poor persons cannot 
expect to enjoy all the advantages which rich persons are enabled to en¬ 
joy, and that this should be looked upon merely as their misfortane. This 
may be true enough as to other affairs of life, but it is not true »is applied 
to the administration of justice. The man on trial is not the only one in¬ 
terested in a proper administration of justice. The state has an interest. 
That interest is not only to secure the punishment of the guilty but to protect 
the innocent. Furthermore, in order that our courts may be held in respect 
by the masses of our people, it is essential that the operation of our ma¬ 
chinery for the enforcement of the criminal laws should be such as to in¬ 
spire the belief that it is absolutely just and impartial and that the same 
measure of justice that is meted out to the rich man is meted out to the poor 
man. 

It is not claimed that in the suggestions thus made there is much, if 
anything, new. The same ideas, either in the same or in a different form, 
have been expressed many times before. But as “a frequent recurrence 
to the fundamental principles of civil government is absolutely necesasry 
to preserve the blessings of liberty,” so, as long as the present or Similar con¬ 
ditions exist, it never can be out of place to remind our legislature and our 
judges, as well as ourselves, that the treatment accorded poor persons in 
our courts is unjust, oppressive, in violation of our fundamental law, and 
inexcusable. 

It would be impracticable on the present occasion to ev^en briefly men- 


13 


tion, much less fairly discuss, all the defects in our machinery for the ad¬ 
ministration of justice, and all the evils attendant upon the disposition of 
causes in our courts. A few words only will be devoted to a small number 
of those which are the most striking and the most apparent. 

Organization of Judicial Department. 

There are in this state two hundred twenty-nine courts of record with 
two hundred and thirty judges and two hundred twenty nine clerks. There 
are also one hundred two sheriffs, one hundred two state’s attorneys, one 
hundred two coroners, one bailiff of a municipal court, one hundred twenty-sev¬ 
en masters in chancery, and assistant state’s attorneys, deputy clerks, deputy 
sheriffs, deputy bailiffs and deputy coroners to the number of about eighieen 
hundred fifty. Add to these about thirty-three hundred justices of the peace 
and about thirty-three hundred constables, and leave out of the leckoning 
police officers, grand and petit jurors and attorneys at law, and we have 
over nine thousand officials engaged in the transaction of the business of 
our courts. The salaries of such of these officials as are i>aid salaries, the 
fees of those who are paid solely by fees, and the fees of grand and petit 
jurors, together with the expense of providing necessary accommodations, 
stationery and other supplies for the courts and their officers, will aggregate 
in round numbers $5,000,000 per annum. This multiplicity of courts and 
officials is unnecessary. It is a relic of antiquity and costs the tax payers 
$2,000,000 a year more than would a properly constructed (ourt system op¬ 
erated in accordance with sound business principles. 

Influence of Political ORGANizATtoNS. 

Our judges and all the officers of our courts whose offices are elective 
are nominated by political organizations and, with few exceptions, secure 
their elections through the activities of the same agencies. Deputy clerks, 
deputy sheriffs, deputy bailiffs and other officers who secure Iheir places 
by means of appointment are, with few exceptions, selected by these same 
organizations. 

This has not, perhaps, interfered to any appreciable extent, with the 
impartial administration of justice in the counties of the state other than 
Cook. But this is because of the closer relations existing in those counties 
between the judges, court officers, attorneys and the people and which tend 
to give judges and court officers less disposition and less opportunity for 
partiality and other forms of corruption. 

In Cook county, however, the situation is different. Fifty out of the 
fifty-six judges of courts of record, all cierlvS of courts, the sheriff, vhe baililf 
of the municipal court, twenty out of twenty-six masters in chancery, and 
almost all deputy clerks, deputy sheriffs, deputy bailiffs, deputy coroners 
and other employees, these deputies and employees numbering in all about 
one thousand and their compensation aggregating about one mlilion 
dollars annually, owe their positions to the political organization to which 
thev belong and, without the aid of that organization, cannot secure re-elec 
tions or re-appointments. Positions of great influence in the party organiza¬ 
tion are held by lawyers and by other men having business to transact in 
the courts. The relations between the judges, the court officers, the attorneys 
and the people aie not close. Pew judges or court officers pei'sonally know 
more than o i -foiir+h of the members of the bar. 

As we all know very many of the questions which arise in judicial pro¬ 
ceedings may be decided by a judge or by a master in chancery either one 
of two or more ways with perfect honesty and with apparently good reason. 
Hence the impracticability, in many cascis, of detecting and proving par- 
ciality on the part of a judge or a master in chancery. A litigant may be 
ruined by the granting or refusal of an injunction, by the appointment or re- 


14 


fusal to appoint a receiver, by the postponement of ihe trial of a case, by the 
decision of an interlocutory motion, by the taking of a case under advise¬ 
ment, or by the dilatoriness of a sheriff, bailiff or clerk. The ways in which 
one litigant may obtain an unjust advantage over another without risk of 
detection are almost innumerable. 

It is not to be wondered at, then, if a lawyer seeing his case on the 
calendar of a judge, or before a master in chancery, who owes his election 
or appointment to the lawyer or the party, or the friends of the lawyer or 
party, on the other side, is filled with apprehension, and, if he is defeated, 
that he attributes his defeat to partiality and corruption. It is a matter 
of common knowledge that there are lawyers who claim to be influential 
with particular judges and by that means secure clients; for the practice of 
the law has become a business, clients want favorable results and v/ill 
naturally employ lawyers who are supposed to be able to secure those re¬ 
sults. Thus a lawyer known to be without political influence, no matter how 
able he may be, is placed at a decided disadvantage. 

The parcelling out of the positions of deputy clerks and deputy bailiffs 
is a cause of much unnecessary expense and is a hindrance to tLe adoption 
of legislation necessary to bring about economy and good business methods 
in the administration of justice. Unnecessary positions and unnecessary work 
in clerks’ offices, sheriffs’ offices and in the bailiff’s office, means unnecessary 
expense to the tax-payer, and unnecessary expense, delay and injustice to 
the litigant. 


Absence of Judges of Supkeme and Appellate Courts. 

The absence of the judges of the supreme court and those of the appel¬ 
late court from the places of holding those courts excepting during compara¬ 
tively short periods is an evil which is productive of great injustice because 
of the delay it occasions litigants. To the prompt and proper transaction of 
the business of these courts it is just as necessary that the judges should 
be always in attendance or at least always accessible, for the purpose of 
hearing and disposing of causes, as it is that, for the prompt and proper 
transaction of their official business, the governor of the state, the attorney 
general, the secretary of state^ the auditor and the treasurer should remain 
during the entire year at the seat of government, or, if temporarily absent 
from the seat of government, should either be accessible to those having 
business with them or should leave other officers in their places with whom 
the business can be transacted. What would be said of a governor of the 
state who would only appear at his office for two weeks out of every eight 
and would then gather up the letters, petitions and other important docu¬ 
ments laid before him, retire to some secluded spot for six weeks and only 
upon his return announce his conclusions upon the various matters of busi¬ 
ness which had been submitted to him for his action? 


Terms of Court. 

We have terms of courts not because there is any occasion for them but 
because English courts had them centuries ago and have continued to have 
them since. In counties in which the business requires but a few weeks of 
circuit court each year, oftentimes six months must elapse before a defendant 
in a civil suit can be required to enter his appearance and the making of a 
new party defendant, or the continuance of the suit, may result in a delay 
of six months more. So, too, a person arrested upon a criminal charge short¬ 
ly after the adjournment of a term of court and unable to give bail may be 
compelled, whether innocent or guilty, to lie in jail for six months, and the 
county must bear the expense of his keeping, before he can be indicted and 


15 


put upon his trial. Not only the convenience of litigants and their attorneys, 
but the interests of the people at large require that all courts of record 
should always be open for the transaction of business and that facilities for 
the transaction of business should be at all times at hand. 


Files and Recokds. 

We keep the files and records of our courts of record in substantially 
the same rnanner in which they were kept ninety years ago. The meuiod 
we follow is cumbersome, clumsy and expensive. It involves the use of 
twenty words where one would answer the purpose much better. It re¬ 
sults in inconvenience and loss of time to judges, clerks, attorneys and 
litigants. It makes necessary much additional and valuable space for the 
keeping of the files and records and the performance of the clerical work of 
the courts. 


Stenographic and Typewriting Work. 

Stenographic and typewriting work has become absolutely necessary to 
the prompt and proper transaction of business in the courts and such work, 
as it is performed at present, is unnecessarily expensive and burdensome to 
litigants. This work should be provided for in the same manner as any 
well managed private corporation provides for its stenographic and type¬ 
writing work and its benefits should be shared by all litigants regardless of 
their financial condition. 


Common Law Pleading. 

Our system of common law pleading contains much unnecessary verbiage. 
A carefully prepared declaration upon a promissory note contains, in round 
numbers, exclusive of the copy of the note, about six hundred words. All 
this verbiage we use to express an idea which a banker would express to his 
debtor by a notice saying “Your note for $1,000, dated July 1, 1909, payable 
three months after date, is over due. Please call and settle.” It requires 
about fifteen hundred words to state in proper legal form, with all necessary 
or prudent variations, the simple fact that a plaintiff has been injured by 
a collision with a street car and claims damages for his injury, a fact 
which could be stated as clearly and intelligently by the use of less than 
fifty worus. The charging part of an indictment for murder, omitting the 
date and place, requires the use of from two hundred to a thousand or more 
words, when the defendant could receive all the necessary information, and 
certainly would be less perplexed, by the simple statement that he had mur¬ 
dered the deceased. Those who view with alarm the proposition to dispense 
with all this superfluous matter, need only be reminded that for more than 
fifty years, upon appeals from justices of the peace, we have been trying 
all kinds of issues in common law cases without written* pleadings and with¬ 
out suffering inconvenience thereby and that for over two years the municipal 
court of Chicago, without the aid of written pleadings, has disposed of civil 
suits involving amounts up to $1,000 at the rate of forty thousand or over 
annually, and there has been no complaint that this method of procedure has 
resulted in injustice or has interfered with the prompt and proper disposition 
of business. 

Equity Pleading and Practice. 

Our system of equity pleading also contains much unnecessary verbiage and 
the rules of equity procedure impose, as well upon the judges and masters in 
chancery as upon the lawyers, much unnecessary work. A general demurrer 
to a bill for want of equity contains about one hundred and fifty words to 
state that which could be expressed quite as well by less than ten words. In 
a bill to foreclose a mortgage the complainant uses about one hundred twenty- 


16 


five words in praying for a foreclosure when the court would understand 
quite as well what he meant if he used but five. We have found it conven¬ 
ient and useful in actions at law to compel a defendant to set forth by 
affidavit the nature of his defense without making the affidavit evidence in 
his favor, and yet we will not permit a complainant in a bill in chancery to 
call upon the defendant for an answer under oath without imposing upon 
the complainant the burden of overcoming the answer by the equivalent of the 
oaths of two witnesses. If a complainant puts too many things in his bill we 
demur to it as multifarious, but if he puts too few things in his bill we plead 
his decree against him as res acljudicata when he subsequently seeks relief 
as to the things omitted. No better description of our system of equity plead¬ 
ing can be given than that written by Mr. Justice Story seventy years ago 
(Story’s Equity Pleadings, Sec. 13): 

“Equality pleading has, indeed, now become a science of great complexity, 
and a very refined species of logic, which it requires great talents to master 
in all its various distinctions and subtle contrivances, and to supply it, with 
sound discretion and judgment, to all the diversities of professional practice. 
The ability to understand what is the appropriate remedy and relief for the 
case; to shape the bill fully, accurately, and neatly, without deforming it by 
loose and immaterial allegations, or loading it with superfluous details; and to 
decide who are the proper and necessary parties to the suit;—the ability to 
do all this requires various talents, long experience, vast learning, and a 
clearness and acuteness of perception, which belong only to very gifted 
minds. Without these, diligence and industry will not always insure success; 
although it may be as truly said, that, without the latter also, genius, how¬ 
ever high, will find itself outstripped in the race, and be compelled to pay 
homage to inferior minds, who may win an easy triumph by steady perse¬ 
verance against the bold, but irregular, sallies of less wary adversaries.” 

Masters in Chancery. 

The payment of masters in chancery by fees instead of by salaries we 
all know is wrong and productive of great abuses, and, in Cook county at 
least, references to masters are unreasonably expensive and in most cases 
productive of nothing but a useless "vyaste of time and money. We are com¬ 
pelled to file objections to masters’ reports and if they are overruled we are 
compelled to file exceptions which subserve no useful purpose, but on the 
contrary cause unnecessary labor in their preparation, unnecessary discus¬ 
sion as to their meaning and effect and oftentimes injustice because not 
skilfully prepared. 

Reports of Judicial Decisions. 

The multiplicity of reports of the decisions of courts of appellate juris¬ 
diction has grown to be an enormous evil and one which sooner or later 
must be abated, or at least materially mitigated. The number of volumes 
of these reports in the United States alone now exceeds six thousand and 
they are increasing at the rate of several hundred per annum. Instead of 
being merely aids, as they may have been in earlier times, in the proper 
administration of justice, they have become a source of confusion, delay and 
uncertainty. They contain much obsolete law, much bad law, many unsound 
arguments and much bad English. While there is much good in them there 
is also much that is useless, much that is positively bad, and much which 
our law students and young lawyers ought not to be permitted to read, and 
which the rest of us ought to forget. 

Books on Practice. 

We are also troubled with a multiplicity of books on practice. We have 
our books on common law pleading and practice, our books on equity plead¬ 
ing and practice, our books of forms, the decisions in our reports and in the 


17 


reports of neighboring states, our Century Digest and other digests, our 
Cyclopedia of Law and Procedure with its fifty or more volumes, our Ency¬ 
clopedia of Pleading and Practice, with its thirty or more volumes, and other 
books almost too numerous to mention. All these we have, not to determine 
what is the law,—that is, the substantive law which regulates the rights 
of parties, but merely how to transact business in the courts. Why should 
we tolerate a situation like this? Why should not we devise some method 
by which substantially all of the rules of practice in vogue in the administra¬ 
tion of justice in this state should be fixed and settled and condensed into 
such form as to be readily accessible to all our judges and all of our law¬ 
yers? Why should we waste our time hunting through all this multiplicity of 
practice books and then debating the conflicting rules and decisions which 
we find, when all but a very few of the questions which may properly arise 
as to modes of procedure can be settled in advance? 

Delays. 

The delays to which litigants are subjected in cases pending in the 
courts are unreasonable and sometimes ruinous. Sometimes these delays 
result from our courts being overloaded with business, sometimes from the 
provisions of our laws regulating appellate procedure and sometimes from 
the gross and inexcusable negligence of judges in taking and keeping cases 
under advisement. Instances have been not infrequent in which judges, after 
keeping cases under advisement so long as to have forgotten all about them, 
have denied having ever heard them. Our judges seem to have no realizing 
sense of the wrong which they do in taking and keeping cases under ad¬ 
visement. By so doing they disregard the constitution, withhold from liti¬ 
gants their just rights to such an extent as to either bring upon them utter 
ruin or to compel them to submit to unjust compromises with their more 
powerful adversaries, and, in general, help to bring the administration of 
justice into well merited contempt. 

Injunctions. 

Great wrongs are perpetrated by the improper issuance of writs of in¬ 
junction and the inability of those against whom they are issued to obtain 
speedy relief by appeals. It is true appeals are now allowed from orders 
granting injunctions but the hearings of these appeals are so delayed as to 
render them practically useless. A litigant may be ruined by the continuance 
in force of an injunction wrongfully issued. Hence the necessity that a 
party injured by such a writ should have immediate relief. 

Receivers. 

Much harm is done by the appointment of receivers. Such appointments 
are sometimes made without sufficient cause and often result in the financial 
ruin of those whose property is seized. Even when properly made they often 
result in the exhaustion, or at least great depletion, of the property which 
is the subject of the receivership by allowances of receivers’ and attorneys’ fees 
and other expenses, 


Habeas Corpus Abuses. 

The writ of habeas corpus is greatly abused. Any judge of a circuit 
court may issue the writ and compel the production before him of a person 
in a distant part of the state. His decision upon the writ is final and hence 
an erroneous decision cannot be corrected by appeal. 


18 


Creditors’ Suits. 

The collection of money judgments and decrees by means of creditors’ 
bills is expensive, dilatory and unsatisfactory and should be replaced by a 
proceeding that is simple, comparatively inexpensive and expeditious. 


Trial by Jury. 

The right of trial by jury is often abused by its exercise in cases which 
can be tried much more expeditiously and much more satisfactorily by the 
court without a jury. In actions on contracts involving small amounts of 
money a demand for a jury trial may be the means of such delay and ex¬ 
pense to a poor litigant as to amount to a denial of justice. So, too, the 
placing upon one calendar of all actions at law and the uncertainty that 
exists whether they will be tried by jury or without a jury disarranges the 
business of the courts, leads to a great waste of time and tends to prevent the 
prompt transaction of business. It is wrong to charge litigants as much for 
trials without a jury as for trials by jury. A concession or rebate to those 
who waive trials by jury would not only be an act of justice, but would tend 
to decrease the number of such trials and thus expedite business. 

On the other hand trial by jury in the cases in which it is availed of 
should be made respectable. The provisions of law regulating the selection 
of jurors should be strictly enforced and, above all, courts of appellate juris¬ 
diction should cease their unjust criticisms upon the honesty and intelligence 
of jurors, and cease reversing judgments for errors which every sensible 
man knows could not have affected the results. 

Appellate Procedure. 

Our appellate procedure is antiquated, complicated and practically in¬ 
capable of mastery by the most competent lawyers and it is productive of 
unnecessary expense, unnecessary delay and unnecessary injustice. To point 
out its defects and all it contains that is vicious would require almost the 
space of an ordinary law book. It is amazing that intelligent men should 
advocate or countenance tne continuance of such a system. One of its many 
peculiarities may be briefly referred to. 

Our appellate tribunals furnish no aid whatever to the proper disposition 
of causes aside from that furnished by the records of adjudicated cases. A 
trial judge, in doubt upon an important question an erroneous decision of 
which may, upon appeal, vitiate the work of court and jury of several months’ 
duration, is not permitted either before or during the trial, to appeal for aid 
or guidance to the higher tribunal. That would not be good form. He must 
go on with his work and complete it and, if he errs, his judgment must be 
reversed, thus necessitating a retrial of the cause and usually long delay and 
great expense. 

But this is not all. If, upon a review of his judgment, numerous rulings 
are complained of, it is not good form for the appellate court or supreme 
court to discuss any more of these rulings than may be necessary to deter¬ 
mine whether the judgment ought to be reversed. Though forty errors be al¬ 
leged, yet, if one be found sufficient to require the reversal of the judgment, 
the appellate tribunal oftentimes limits itself to pointing out this error alone 
and as to the rest it says “Other errors are alleged, but we do not deem it 
necessary to consider them for the questions thus presented may not arise 
upon another trial;” and it thus leaves the trial judge to try the case over 
again, uncertain whether his rulings upon the previous trial not passed upon 
by the supreme court are correct or erroneous. If he makes the same rulings 
upon the retrial of the cause his judgment may be reversed because he makes 
them, or if he refuses to make them his judgment may be reversed because 
of such refusal. 


19 


How different this is from the mode of procedure adopted by a manufac¬ 
turing corporation which has a superintendent, or a number of superinten¬ 
dents? If a workman engaged in the construction of an expensive machine 
should be in doubt as to the proper construction of some portion of it and 
he should apply to the superintendent, the expert, for advice, he would not 
be turned down and coolly told to go his way, complete his work and when 
it was completed send it up for inspection and that then, if it were found not 
perfect, it would be knocked to pieces and the pieces thrown into the scrap 
heap. On the contrary he would be given the proper directions how to pro¬ 
ceed, Furthermore, if, upon the completion of a machine and upon its inspec¬ 
tion by the superintendent, a number of defects or supposed defects should 
be brought to the attention of the superintendent for his action he would 
not, after pointing out one defect, direct the machine to be knocked to pieces 
and tell the workman that the other criticisms upon it might not arise if a 
new one were made, and that, if they did, he would consider them when the 
new machine was presented to him for inspection. 'On the contrary, he would 
pass upon all the alleged defects in the machine and besides, instead of di¬ 
recting it to be knocked to pieces, he would direct that the defects should 
be remedied without the destruction of any more of the machine than was 
absolutely necessary to accomplish the purpose. 

Again, if a general in modern times, in command of an army of a mil¬ 
lion men spread over an area of fifty or more miles square and engaged in a 
battle with the enemy which might determine the fate of his country, should 
be called up on the telephone by one of his subordinates for advice as to a 
movement of troops which might be of great importance he would not tell 
his subordinate to go to and take whatever course he saw fit and that he 
would tell him, after the battle was over, whether the course he adopted 
was right, or wrong. He would give the necessary direction. We see nothing 
wrong in a general directing an immense army by telephone, but if some¬ 
body should propose that a trial judge, in doubt as to an important question 
of practice, might call up the supreme court by telephone and ask and obtain 
their advice and thus perhaps prevent a mistrial of an action, he would at 
once be declared a fit subject for the writ de lunatico.. Let us see, however, 
how this would work. 

Take for instance the turntable case in which the judges of the .-upreme 
court were divided, five being on one side and two being on the other. Sup¬ 
pose the trial judge in that case, being in doubt whether, in the instruction 
to the jury, he should use the words, “age, capacity and intelligejice” or the 
words “age, capacity, intelligence and experience," had been permitted to call 
up the chief justice of the supreme court by telephone and had requested 
the opinion of the court. What would have been the result? Assuming the 
judges were in Springfield as they should have been, the chief justice would 
have called them together immediately and, after a consultation of grammars 
and dictionaries and, possibly, an all night’s learned and interesting debate, 
this grave and important question would have been settled, the conclusion of 
the victorious five would have been communicated to the trial judge, the 
trial would have proceeded, “experience” would have been embodied in the 
instruction, the twelve-year-old girl who was the plaintiff v ould have ob¬ 
tained her judgment and it would not have been reversed. 

Take also McCarthy’s case. Suppose that, upon the commission by the 
attorney for the plaintiff of the unpardonable o Tense of mentioning to the 
jury the fact that McCarthy had a wife and five children, the trial judge had 
called up the chief justice, stated the situation and asked ror advice. What 
would have been the result? A meeting of the judges Mmuld have been called, 
it would have been unanimously resolved that the minds of the jury had oeen 
so poisoned that the trial could not safely proceed, and the court would have 
directed the trial judge to discharge the jury, impanel another jury in its 
place and proceed witn the trial. The result as we have seen, would prob¬ 
ably have been that McCarthy would have obtained a judgment for $11,500 
and it would not have been reversed. 


20 


Of course these suggestions are radical and revolutionary but they are 
so not because they are in violation of those ordinary rules which are essen 
tial to the successful carrying on of mercantile and other business enterprises, 
as well as some of the most important transactions of life, but because the 
idea of conducting the business of the courts sensibly and in accordance with 
good business methods is something almost beyond the dreams of the members 
of our profession. Surely something should be done. Either a method should 
be found for preventing judges of trial courts from making mistakes, or the 
power of appellate tribunals to reverse judgments for trivial mistakes should 
be taken away. 

It is perfectly apparent that, in the transaction of business in our courts, 
the rules which guide corporations, firms and individuals in carrying on 
manufacturing, mercantile and other lines of business are disregarded and 
always have been, and, unless a change that is revolutionary is brought about, 
always will be. People engaged in producing or manufacturing articles for 
sale have found themselves compelled to improve their methods of production 
or manufacture, to avail themselves of the most improved tools, appliances 
and machinery, to avoid all unnecessary work and to economize in all pos¬ 
sible directions. They do not look with distrust upon new inventions, or view 
with alarm and terror the introduction of new business methods. They have also 
found it necessary to adopt every practicable device to make their pioducts 
more acceptable to their customers and they have found it profitable to se¬ 
cure to their customers good treatment. They do not act upon the theory 
that they will have plenty of business, no matter what their methods may be, 
or reason that they will have plenty of customers to transact business with no 
matter how those customers are treated. They know better. They are wiser. 
Consequently they prosper. 

Why should not we do as these other men of affairs do? Why should 
we not improve our business methods, avoid all unnecessary work, economize, 
make litigation attractive to our clients, and secure to them decent treatment 
in the courts? Why should we be utterly heedless as to the expenses, aside from 
our own fees, which we impose upon them? Why should we compel them 
to submit to long delays before their cases are subject to call for trial, and, 
after they are subject to call, permit them to be compelled to wait with their 
witnesses for days or weeks in or about the courts until their trials can be 
had? Why do we suffer them to be subjected to many other inconveniences 
and annoyances which are wholly unnecessary? Is it because we think they 
are compelled to litigate and are therefore helpless and it is of no consequence 
how they may feel or how they may be mistreated? If so, we are mistaken. 
People are not bound to litigate, excepting sometimes when they are brought 
into court as defendants, and even then, in most cases, they may deem it ex¬ 
pedient to heed the advice of Jesus, “Agree with thine adversary quickly, 
whilst thou art with him in the way; lest haply the adversary deliver thee to 
the judge and the judge deliver thee to the officer, and thou be cast into 
prison.” So, too, even those who have claims which they wish to prosecute 
will abandon them rather than submit to the delay, the expense, the annoy¬ 
ance and the injustice with which, as they have learned, they will be treated 
in our courts. Let us not try to deceive ourselves. Neither our courts nor 
the members of our profession are held in respect by the people. We are de¬ 
spised, mistrusted and held in contempt. Our methods are ridiculed and 
justly so. 

Would it not be well, then, for us to awaken to a realization of the situa¬ 
tion in which we are placed and take steps for a change for the better? Why 
not follow the example of our brethren who practice medicine and surgery? 
Time was when they were as much ridiculed and despised as we are now. 
They bled their patients to death. They insisted that their castor oil, their 
Dover’s powders, their blue mass and all their other nauseous, ill-smelling 
and ill-tasting drugs should be taken in their natural state. They seemed to 
take pains to make themselves as disagreeable to their patients as possible. 


21 


Their surgery was unskilful and the choice of a surgical operation was a 
choice between almost certain death at the hands of the surgeon and a pos¬ 
sible recovery or a natural death. But finally the light of reason began to 
break in upon these doctors of medicine and surgery. They began to sugar- 
coat their pills, to make children cry for medicine instead of against it, and to 
provide their patients with trained nurses. When a new method of treating 
a disease or performing a surgical operation was proposed they did not cry 
out “for Heaven’s sake don’t change the practice for we don’t want to learn 
our business over again.’’ When some simple remedy was proposed for the 
treatment of a disease they did not exclaim “don’t simplify the practice for 
if you do anybody can practice medicine.” Neither did they act upon the 
theory that the practice of medicine and surgery was a matter principally 
for their benefit and financial advantage and that their prosperity depended 
upon their making their patients sick and keeping them sick. Not by any 
means did they do these things. On the contrary, by improvements in sur¬ 
gery they learned to save patients from death from injuries which formerly 
were fatal, and by improvements in methods of treatment they learned to cure 
diseases which were regarded as incurable before and they are still improv¬ 
ing and progressing. But this is not all. They have become diligent in the 
invention and discovery of methods which go to make good health and pre¬ 
vent disease. They seem to have no apprehension that by adavncing the 
general health of the community they are injuring their own business. They 
are charitable and generous to the poor and unfortunate. They refuse no one 
necessary medical or surgical treatment, no matter what his or her financial 
circumstances may be. They aid in the maintainance of hospitals where poor 
persons are given the most skillful medical and surgical treatment free of 
charge. 

In all this they have made no mistake so far as their own personal in¬ 
terests are concerned. They are now looked upon as among the best friends of 
humanity. They have prospered financially. They find work to do which had 
never been done before. They have found their patients better able to pay 
their bills when they are kept in good health than they would be if they were 
continually weakened by disease. Some bad men, it is true, are to be found 
among them, but nevertheless the vast majority of the profession are rightly 
esteemed as benefactors of mankind. 

What have the lawyers of Illinois done within the ninety years which 
have elapsed since the organization of the state government for the improve¬ 
ment of the administration of justice? What have they done to advance the 
interests of litigants, to secure justice to poor persons, to expedite the tran¬ 
saction of business, to simplify methods of procedure, or to aid in the proper 
and prompt enforcement of the criminal laws? Practically nothing. Instead 
of aiding progress and improvement they bitterly oppose them. That some 
improvements in the practice of the law have been introduced is true. But 
it is equally true that more changes have been introduced which have been 
detrimental to the prompt determination of causes according to right and 
justice. Do we not furnish a most pitiable spectacle when we are compared 
with the farmer, the mechanic, the builder, the machinist, the printer, the 
merchant, the manufacturer, the engineer, the surgeon, the chemist, the artist 
or the man of any other calling? 

It is apparent that something ought to be done and must be done to im¬ 
prove the administration of justice and make the practice of the law a re¬ 
spectable and useful calling. It is not intended in this paper, however, to 
outline or discuss any measure which might be thought calculated to accomp¬ 
lish the desired end, but a few suggestions, neverthneless, will be offered re¬ 
specting certain propositions which have been advanced in a printed circular 
letter addressed to the members of the General Assembly during its last 
session. 

One proposition is that a law which would occupy not over thirty pages of 
the size of those contained in the Revised Statutes, being equivalent to about 


22 


seventy pages of the size of those contained in a legislative bill, would do the 
work. The present Revised Statutes contain about two hundred and fifty 
pages, being the equivalent of about six hundred pages of a legislative bill, of 
provisions pertaining to the courts. About two-thirds of these provisions are 
unobjectionable. They have been construed by the courts and are understood 
by the bench and bar and should be re-enacted as a part of any act designed to 
cover the entire field of court legislation. Apart from this, thirty pages would 
not be sufficient to contain provisions necessary to provide a suitable scheme 
for the keeping of the files and records of our courts, to say nothing of numer¬ 
ous other necessary provisions none of which is contained in the Revised 
Statutes. These facts alone would seem to dispose of the proposition that a 
proper court act can be framed within the limits thus suggested. 

Another proposition is that the law should not prescribe detailed rules of 
practice but that room should be left “for the exercise of reasonable in¬ 
telligence on the part of the bench and bar.” When it is considered that 
not only our rules of procedure but also our substantive law are, for the 
most part, the products of judicial legislation and have been made law by the 
courts largely at the instigation of the bar, and that the bench and bar 
are responsible for the existence of most of the evils which render the admin¬ 
istration of justice so unsatisfactory, the suggestion that the General As¬ 
sembly should pass a short court act containing only general provisions 
and leave the rest to the “reasonable intelligence” of the bench and bar 
is not likely to appeal very strongly to those who are dissatisfied with the 
existing order of things and who wish existing evils remedied. Past ex¬ 
perience shows that both the bench and the bar have not only been hostile 
to the enactment of legislation changing modes of procedure, but that their 
hostility to new modes of procedure when prescribed has continued and has 
greatly impeded their beneficial operation. It is all well enough, and, in¬ 
deed, it is necessary, that a reasonable discretion should be left to our judges 
in the matter of rules of procedure, but to leave to them too much discre¬ 
tion would be likely to result in the adoption of many rules more suited to 
their own convenience than to the convenience of litigants and members of 
the bar and to the prompt and proper transaction of business. Moreover, 
the enactment of a new code of procedure, general in its terms, which would 
require judicial construction and numerous rules of court for its proper 
operation, would plunge us into a state of confusion and uncertainty which 
it would require many years to remove. We would be worse off with such 
a code than we are now. Finally, it is perfectly plain that if our judges 
had both the disposition and the ability to enact good rules of procedure 
they would have no time to do the work. They have all they can do as it is. 

The proposal, then, that we enact a short code couched in general 
terms and leave the rest to the judges and lawyers must be rejected as im¬ 
practicable and as not suited to the conditions which surround us. The 
better course, it is respectfully submitted, is to enact, not many laws, but 
only one law containing, so far as may be practicable, all necessary pro¬ 
visions pertaining to the courts, re-enacting therein those provisions of 
existing law which are unobjectionable, which have been construed and 
which are well understood, with only such slight changes as may be neces¬ 
sary to make them harmonize with the other provisions of the law; to 
provide an abundance of forms of papers, decrees, judgments and record 
entries used in proceedings in court; to prescribe methods of procedure 
which will tend to bring about economy of time and money, expedite busi¬ 
ness, and secure the determination of every case according to right and 
justice; to provide all details which may be necessary or useful for making 
lu easy for judges and lawyers to understand and follow the new modes of 
procedure and thus avoid, as much as possible, the confusion which changes 
in matters of practice usually bring about, and then give the supreme court 
of the state large discretionary powers to enlarge upon the rules thus pre¬ 
scribed, or even to vary from or modify them when, in their actual operation. 


23 


. » 


they may seem to produce inconvenience or injustice. While the changes 
we make in existing methods of procedure should be radical in effect they 
should be simple in form. They should consist not so much in 
new provisions as in the elimination of superfluous verbiage, use¬ 
less or worse than useless forms and everything which expe¬ 
rience has taught us is calculated to cause unnecessary delay, unnecessary ex¬ 
pense and to defeat justice. Above all let us have a law which will cure 
both lawyers and judges of pettifogging and quibbling and compel the de¬ 
termination of causes in accordance with right and justice. 

If a law of this kind be properly framed, provided with a carefully pre¬ 
pared index and an introduction or notes explanatory of the changes made 
in existing law, and put in operation, the benefits resulting from it will be 
immediately apparent and, if the law be supplemented by a proper book on 
practice prepared and published under the supervision of the supreme court, 
within less than three years the business of our courts will be in such condi¬ 
tion that we will be able, in any ordinary case, to secure a final deter¬ 
mination of the suit, both in the court of original jurisdiction and in the 
court of appellate jurisdiction, within four months after its commencement, 
and questions of practice will almost cease to exist. 


0 033 239 120 3 








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